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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.bergsteinullrichlaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, January 13, 2014

Second Circuit rejects age discrimination claim against Time-Warner

A lawyer who worked for Time-Warner sued this mega-corporation for age discrimination. The Court of Appeals finds that the district court properly dismissed the case on summary judgment because there is no evidence of pretext.

The case is Wolf v. Time-Warner, a summary order decided on December 19. It occurred to me recently that it's been a few years since the Court of Appeals in a published opinion reversed summary judgment in a straight McDonnell-Douglas case, which allows the plaintiff to win on the strength of circumstantial evidence. In this case, the plaintiff alleged that the various complaints about her job performance were not true and that the real reason for her termination was her age. You can challenge the veracity of the criticisms, but the Court of Appeals still wants to know if the false critiques permit an inference of age discrimination. The Court (Livingston, Cabranes and Wesley) says,

Wolf contests the veracity of the multiple complaints lodged by various Time Warner employees against her during the relevant time period, as well as the negative “feedback” she received in her performance evaluations. However, “in a discrimination case, . . . we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what motivated the employer; the factual validity of the underlying imputation against the employee is not at issue.” Regardless of whether this criticism of Wolf from multiple colleagues was warranted, she does not dispute the fact that her supervisors received it, and as a result, put her on probation in April of 2007.

Remember what I said about the Court of Appeals not ruling in a plaintiff's favor in a pretext-only discrimination case in a few years? One of those cases is Gorzynski v. Jet Blue Airlines, 596 F.3d 93 (2d Cir. 2010). Wolf relies on that case, but the Second Circuit says this case is not Gorzynski, stating,

[In Gorzynski], we found that the District Court had erroneously granted summary judgment on plaintiff’s age discrimination claim because we concluded that she had presented sufficient evidence of pretext. 593 F.3d at 107-10 (finding that: complaints about the plaintiff’s performance were minimal and only surfaced after her complaint of discrimination; her negative performance evaluation was conducted by an individual accused of discrimination, and conducted after he had supervised her for only one week; plaintiff’s probationary status stemmed directly from this faulty performance evaluation; there were several questions related to the event precipitating plaintiff’s firing and the subsequent investigation; and there was considerable evidence that younger employees were treated differently). None of the indicators of pretext from Gorzynski are present here.

Finally, Wolf cites an ageist comment from a colleague in support of her claim. That colleague, Spencer, expressed astonishment that plaintiff was 55 years-old. Plaintiff argues that her work environment went downhill from there. While this comment might be relevant to prove age discrimination, the Second Circuit does not think it applies here. Spencer is not the one who made the decision to fire plaintiff. Other supervisors did that. According to the Court of Appeals, those supervisors heard much criticism about plaintiff's job performance, and the colleagues who complained about her did not appear to do so based on her age.